What is a patentable invention – under IPA a patent is defined as a solution to a specific problem in technology. It may be of two forms
1. Product e.g. aspirin which means that a person can repackage and recreate aspirin for other purposes and patent it, may be one discovers a new use of aspirin for eg cancer, they can patent aspirin as a cure for cancer and Bayer can still be manufacturing aspirin for the other diseases that they invented it for like heart defects, one has to discover a new way of using a known product, you can have the patent for the process.
Section 21 says that certain things are excluded from patents ab initio, plants are not patentable. Discovery in America patent law means invention. Scientific theories are not patentable, for example discovering a universal law of nature like the fact that water boils at a 100 degrees Celsius is not patentable. Energy is neither destroyed or created but transferred.
2. Schemes, Rules, Methods of doing business – schemes of playing games such as soccer or performing mental acts are not patentable, the utility is doubtful. For a long time the Law in US, UK and Kenya used to argue that u cannot patent business methods. For example mali kwa mali is not patentable. The argument is if one has a new way of doing business, they can be protected under trademark. Around 1980 there was a lot of debate and mostly people wanted to be allowed to patent business methods. There was a convergence of computer science and there was development of software and internet business. In the case of Diamond v Diehr (1980) there were so many developments in software engineering and people wanted their inventions in software protect and the US was saying that no you cannot patent software which was classified as a logarithm you could only copyright software. After 1980 they were allowed to patent software in Kenya it was in 1989 saying that a logarithms and computer programming were not patentable. Diamond & Diehr were insisting that software could be patentable and Diamond v Chakarbaty were saying that anything was patentable, in 1989 Kenya Industrial Act said that one could not patent software but in 2001 the Kenya Act is saying that it is possible to both copyright and patent software in Kenya. The one click patent was given to Amazon.com this was a way of clicking once to access what you want.
3. Methods of treatment of human bodies or animals, these are not patentable, mere representation of data or information is not patentable, public health using of molecules to cure disease is not patentable and neither is gene therapy. Standard information is not patentable e.g. Ghai and Mcauslan cannot patent Kenya’s getting Independence in 1963 though they have written about it.
2. the reason why one does not want to protect the above list is because most of them are protected under different regimes or other systems of law, discoveries of plants are protected by Plant Breeders Rights, trade secrets are protected by Industrial Property etc.
novelty must be absolute. How is novelty determined. There are three ways in Kenya.
(a) General Data Base of research at KIPI where one can research and see whether what one has invented can be protected or whether it has been patented in Kenya;
(b) ARIPO based in Harare has another data base on what has been patented somewhere and it helps member states with access to the database so that they can know what has been patented
(c) Patent African Cooperation Treaty entered into under the auspices of WIPO and where one wants their invention to be protected in Kenya, KIPI will do but when one wants to patent in many other countries ARIPO will protect one in English speaking Africa, Patents are territorial and is only protectable only where it has been registered when one wants patent in Europe they can go to PCT. All these organizations help the inventor with the data and also help patent offices with information to avoid duplicating research. There is no worldwide patent and one has to designate the countries where they are protected.